COCODE

18-18-406. Offenses relating to marijuana and marijuana concentrate - definitions.

Statute text

(1) (a) The sale, transfer, or dispensing of more than two and one-half pounds of marijuana or more than one pound of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 1 drug felony subject to the mandatory sentencing provision in section 18-1.3-401.5 (7).

(b) The sale, transfer, or dispensing of more than six ounces, but not more than two and one-half pounds of marijuana or more than three ounces, but not more than one pound of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 2 drug felony.

(c) The sale, transfer, or dispensing of more than one ounce, but not more than six ounces of marijuana or more than one-half ounce, but not more than three ounces, of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 3 drug felony.

(d) The sale, transfer, or dispensing of not more than one ounce of marijuana or not more than one-half ounce of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 4 drug felony.

(2) (a) (I) It is unlawful for a person to knowingly process or manufacture any marijuana or marijuana concentrate or knowingly allow to be processed or manufactured on land owned, occupied, or controlled by him or her any marijuana or marijuana concentrate except as authorized pursuant to part 1 of article 280 of title 12 or part 2 of article 80 of title 27.

(II) A person who violates the provisions of subparagraph (I) of this paragraph (a) commits a level 3 drug felony.

(b) (I) Except as otherwise provided in subsection (7) of this section and except as authorized by part 1 of article 280 of title 12, part 2 of article 80 of title 27, or part 2 or 3 of this article 18, it is unlawful for a person to knowingly dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate; or attempt, induce, attempt to induce, or conspire with one or more other persons, to dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate.

(II) As used in subsection (2)(b)(I) of this section, "dispense" does not include labeling, as defined in section 12-280-103 (23).

(III) A person who violates any of the provisions of subparagraph (I) of this paragraph (b) commits:

(A) A level 1 drug felony and is subject to the mandatory sentencing provision in section 18-1.3-401.5 (7) if the amount of marijuana is more than fifty pounds or the amount of marijuana concentrate is more than twenty-five pounds;

(B) A level 2 drug felony if the amount of marijuana is more than five pounds but not more than fifty pounds or the amount of marijuana concentrate is more than two and one-half pounds but not more than twenty-five pounds;

(C) A level 3 drug felony if the amount is more than twelve ounces but not more than five pounds of marijuana or more than six ounces but not more than two and one-half pounds of marijuana concentrate;

(D) A level 4 drug felony if the amount is more than four ounces, but not more than twelve ounces of marijuana or more than two ounces but not more than six ounces of marijuana concentrate; or

(E) A level 1 drug misdemeanor if the amount is not more than four ounces of marijuana or not more than two ounces of marijuana concentrate.

(3) (a) (I) It is unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls.

(II) (A) Regardless of whether the plants are for medical or recreational use, it is unlawful for a person to knowingly cultivate, grow, or produce more than twelve marijuana plants on or in a residential property; or to knowingly allow more than twelve marijuana plants to be cultivated, grown, or produced on or in a residential property.

(B) Except as provided in section 25-1.5-106 (8.5)(a.5)(I) or section 25-1.5-106 (8.6)(a)(I.5) for a medical marijuana patient or a primary caregiver with a twenty-four-marijuana-plant-count exception to subsection (3)(a)(II)(A) of this section, it is not a violation of subsection (3)(a)(II)(A) of this section if a county, municipality, or city and county law expressly permits the cultivation, growth, or production of more than twelve marijuana plants on or in a residential property and the person is cultivating, growing, or producing the plants in an enclosed and locked space and within the limit set by the county, municipality, or city and county where the plants are located.

(III) A person who violates the provisions of subsection (3)(a)(I) of this section commits:

(A) A level 3 drug felony if the offense involves more than thirty plants;

(B) A level 4 drug felony if the offense involves more than six but not more than thirty plants; or

(IV) A person who violates the provisions of subsection (3)(a)(II)(A) of this section commits:

(A) A level 1 drug petty offense for a first offense if the offense involves more than twelve plants, and, upon conviction, shall be punished by a fine of up to one thousand dollars;

(B) A level 1 drug misdemeanor for a second or subsequent offense if the offense involves more than twelve but not more than twenty-four plants; or

(V) Prosecution under subsection (3)(a)(II)(A) of this section does not prohibit prosecution under any other section of law.

(b) It is not a violation of this subsection (3) if:

(I) The person is lawfully cultivating medical marijuana pursuant to the authority granted in section 14 of article XVIII of the state constitution in an enclosed and locked space;

(II) The person is lawfully cultivating marijuana in an enclosed and locked space pursuant to the authority granted in section 16 of article XVIII of the state constitution; except that, if the cultivation area is located in a residence and:

(A) A person under twenty-one years of age lives at the residence, the cultivation area itself must be enclosed and locked; and

(B) If no person under twenty-one years of age lives at the residence, the external locks of the residence constitutes an enclosed and locked space. If a person under twenty-one years of age enters the residence, the person must ensure that access to the cultivation site is reasonably restricted for the duration of that person's presence in the residence.

(I) "Flowering" means the reproductive state of the cannabis plant in which there are physical signs of flower budding out of the nodes in the stem.

(II) "Plant" means any cannabis plant in a cultivating medium which plant is more than four inches wide or four inches high or a flowering cannabis plant regardless of the plant's size.

(III) "Residential property" means a single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation. "Residential property" also includes the real property surrounding a structure, owned in common with the structure, that includes one or more single units providing complete independent living facilities.

(3.5) A person is not in compliance with the authority to assist another individual granted in section 14 (2)(b) or section 16 (3)(e) of article XVIII of the state constitution and is subject to the offenses and penalties of subsection (3) of this section if the person possesses any marijuana plant he or she is growing on behalf of another individual, unless he or she is the primary caregiver for the individual and is in compliance with the requirements of section 25-1.5-106.

(4) On or after March 1, 2020:

(a) Repealed.

(b) A person who possesses more than six ounces of marijuana or more than three ounces of marijuana concentrate commits a level 1 drug misdemeanor.

(c) A person who possesses more than two ounces of marijuana but not more than six ounces of marijuana or not more than three ounces of marijuana concentrate commits a level 2 drug misdemeanor.

(5) (a) Repealed.

(b) (I) Except as described in section 18-1-711, a person who openly and publicly displays, consumes, or uses two ounces or less of marijuana commits a drug petty offense and, upon conviction thereof, shall be punished by a fine of up to one hundred dollars and up to twenty-four hours of community service.

(II) Open and public display, consumption, or use of more than two ounces of marijuana or any amount of marijuana concentrate is deemed possession thereof, and violations shall be punished as provided for in subsection (4) of this section.

(III) Except as otherwise provided for in subsection (5)(b)(I) of this section, consumption or use of marijuana or marijuana concentrate is deemed possession thereof, and violations must be punished as provided for in subsection (4) of this section.

(IV) Public display, consumption, or use of marijuana or marijuana concentrate pursuant to the provisions of section 44-10-609, when such display, consumption, or use is within the licensed premises of a marijuana hospitality business licensed pursuant to section 44-10-609, is not a violation of this subsection (5).

(V) Public display, consumption, or use of retail marijuana or retail marijuana concentrate pursuant to the provisions of section 44-10-610, when such display, consumption, or use is within the licensed premises of a retail marijuana hospitality and sales business licensed pursuant to section 44-10-610 and when an individual's display, consumption, or use does not exceed the sales limit established by the state licensing authority by rule pursuant to section 44-10-203 (2)(ff)(II), is not a violation of this subsection (5).

(c) Transferring or dispensing not more than two ounces of marijuana from one person to another for no consideration is a drug petty offense and is not deemed dispensing or sale thereof.

(5.5) (a) It is unlawful for a person to transfer marijuana or marijuana concentrate at no cost to a person if the transfer is in any way related to remuneration for any other service or product.

(b) A violation of this subsection (5.5) is a level 1 drug misdemeanor.

(6) The provisions of this section do not apply to any person who possesses, uses, prescribes, dispenses, or administers any drug classified under group C guidelines of the national cancer institute, as amended, approved by the federal food and drug administration.

(7) The provisions of this section do not apply to any person who possesses, uses, prescribes, dispenses, or administers dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a federal food and drug administration approved drug product, pursuant to part 1 of article 280 of title 12 or part 2 of article 80 of title 27.

History

Source: L. 92: Entire article R&RE, p. 358, 1, effective July 1. L. 95: (10) amended, p. 206, 21, effective April 13. L. 98: (12) added, p. 1436, 6, effective July 1. L. 2000: (12) amended, p. 1360, 43, effective July 1, 2001. L. 2002: (4)(a)(II), (4)(b)(II), (7)(c), (8)(a)(II)(B), (8)(b)(III)(B), and (12) amended, pp. 1580, 1583, 5, 14, effective July 1; (3)(a)(I), (7)(a), (7)(b), and (7)(c) amended, p. 1519, 213, effective October 1. L. 2003: (7)(c) and (9) amended, p. 1428, 12, effective April 29. L. 2009: (12) repealed, (HB 09-1266), ch. 347, p. 1815, 6, effective August 5. L. 2010: (1), (3), (4), (5), (6), (7), and (8) amended and (7.5) added, (HB 10-1352), ch. 259, p. 1166, 6, effective August 11. L. 2011: (3)(a)(II) and (3)(b) amended, (HB 11-1303), ch. 264, p. 1157, 35, effective August 10. L. 2012: (1) and (3)(a)(I) amended, (SB 12-020), ch. 225, p. 988, 6, effective May 29; (2) amended, (SB 12-175), ch. 208, p. 874, 133, effective July 1; (6)(a)(I), (6)(b)(I), (6)(b)(II), and (11) amended, (HB 12-1311), ch. 281, p. 1622, 56, effective July 1. L. 2013: Entire section R&RE, (SB 13-250), ch. 333, p. 1913, 11, effective October 1. L. 2014: (3) amended, (HB 14-1122), ch. 39, p. 201, 5, effective March 17. L. 2016: (3)(b)(I) amended, (SB 16-080), ch. 247, p. 1017, 1, effective June 8; (5.5) added, (HB 16-1261), ch. 338, p. 1378, 11, effective June 10. L. 2017: (3.5) added, (HB 17-1221), ch. 401, p. 2091, 2, effective July 1; (3)(a) amended and (3)(c) added, (HB 17-1220), ch. 402, p. 2095, 2, effective January 1, 2018. L. 2019: (5)(b)(IV) and (5)(b)(V) added, (HB 19-1230), ch. 340, p. 3116, 9, effective August 2; (2)(a)(I), (2)(b)(I), (2)(b)(II), and (7) amended, (HB 19-1172), ch. 136, p. 1679, 107, effective October 1; (5)(b)(IV) and (5)(b)(V) amended, (HB 19-1230), ch. 340, p. 3127, 23, effective January 1, 2020; (4) and (5)(a)(II) amended, (HB 19-1263), ch. 291, p. 2677, 2, effective March 1, 2020. L. 2021: (5)(a) repealed and (5)(b)(III) amended, (HB 21-1090), ch. 157, p. 901, 3, effective May 20.

Annotations

Editor's note: (1) This section is similar to former 18-18-106 as it existed prior to 1992.

(2) Amendments to subsection (7)(c) by House Bill 02-1237 and House Bill 02-1046 were harmonized.

(3) Subsection (4)(a)(II) provided for the repeal of subsection (4)(a), effective March 1, 2020. (See L. 2019, p. 2677.)

Annotations

Cross references: For the legislative declaration contained in the 2002 act amending subsections (3)(a)(I), (7)(a), (7)(b), and (7)(c), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in the 2012 act amending subsections (1) and (3)(a)(I), see section 1 of chapter 225, Session Laws of Colorado 2012. For the legislative declaration in HB 17-1221, see section 1 of chapter 401, Session Laws of Colorado 2017. For the legislative declaration in HB 17-1220, see section 1 of chapter 402, Session Laws of Colorado 2017.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "When May a Probation Condition Allowing Use of Medical Marijuana Violate the Code of Judicial Conduct? Judicial Respect for the Law and Promoting Public Confidence in the Judiciary", see 89 Denv. U.L. Rev. 1017 (2012). For article, "Amendment 64: Five Years Later", see 46 Colo. Law. 34 (Oct. 2017). For article, "In 'Case' You Missed It--2020-21: Real Estate Case Law Highlights", see 51 Colo. Law. 44 (Jan. 2022).

Annotator's note. Since 18-18-406 is similar to 18-18-406 as it existed prior to its 2013 repeal and reenactment, relevant cases construing that provision and former provisions similar to that section have been included in the annotations to this section.

Double jeopardy. The elements of the offense of possession of eight or more ounces of marihuana and the offense of cultivation of marihuana are not identical; therefore, conviction of both offenses does not violate constitutional protections against double jeopardy. People v. Benson, 124 P.3d 851 (Colo. App. 2005).

Possession of hashish constitutionally treated differently. Because hashish is readily distinguishable from and potentially more intoxicating than marijuana, the general assembly may constitutionally treat possession of those substances differently, subsection (1) and (4)(b)(I), even though hashish falls into the statutory definition of marijuana in 12-22-303 (17). People v. Velasquez, 666 P.2d 567 (Colo. 1983), appeal dismissed for want of substantial federal question, 465 U.S. 1001 (1984).

As is possession of hash oil. Since the active ingredient in hash oil is THC and occurs in greater concentrations in hash oil than in hashish, statute providing for more severe punishment for possession of hashish and hash oil is based upon reasonable classification and does not deny equal protection. People v. Siwierka, 683 P.2d 356 (Colo. 1984).

Penalty scheme does not violate equal protection even though lesser penalties for criminal conspiracy are established under 18-2-206. People v. Finnessey, 747 P.2d 673 (Colo. 1987).

The phrase "intent to distribute" is not unconstitutionally vague. The phrase is a term that a person of ordinary intelligence can understand. The quantity required to permit the fact finder to infer that the possessor intended to distribute a controlled substance is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case. People v. Clendenin, 232 P.3d 210 (Colo. App. 2009) (decided prior to 2010 amendment).

The general assembly cannot modify the affirmative defense found in article XVIII, 14 (2)(a), to a charge pursuant to subsection (3)(a) of this section. The trial court properly excluded the provisions of subsections (3)(b)(I) and (3.5) of this section in the affirmative defense jury instruction. Inclusion of those provisions would dilute the affirmative defense, and the general assembly has no authority to dilute constitutional rights. A statute that purports to add substantive elements to a defense defined in the constitution cannot trump the constitution. People v. Cox, 2021 COA 68, 493 P.3d 914.

The defense in 14 (4)(b) of article XVIII of the state constitution for possessing more than six plants cannot be raised based on a claim of medical necessity obtained after a defendant is charged with possession of marijuana plants. People v. Fioco, 2014 COA 22, 342 P.3d 530 (decided under former law).

The distinction between marihuana and marihuana concentrate as set forth in 12-22-303 (17) and 12-22-303 (18) complies with both the equal protection and due process requirements of the Colorado and United States constitutions. People v. Rickstrew, 712 P.2d 1008 (Colo. 1986).

Section 16 of article XVIII of the state constitution deprived the state of its power to continue to prosecute cases for possession of less than one ounce of marijuana that had not gone to trial and cases when there was a nonfinal conviction and a pending right to appeal on the effective date of that section, December 10, 2012. People v. Boyd, 2017 CO 2, 387 P.3d 755; Russell v. People, 2017 CO 3, 387 P.3d 750; People v. Wolf, 2017 CO 4, 387 P.3d 753.

The mitigating statute, 18-1-410 (1)(f)(I), permits the provisions of art. XVIII, 16, of the state constitution (known as amendment 64) to apply retroactively to any appeal pending on or after December 10, 2012. Therefore, defendant's convictions for possession of less than one ounce of marijuana and possession of marijuana concentrate must be vacated. People v. Russell, 2014 COA 21M, 396 P.3d 71, aff'd, 2017 CO 3, 387 P.3d 750.

"Hash-oil extraction" is manufacturing, not processing, and is not protected as a personal use authorized under amendment 64. When amendment 64 was approved, "processing" marijuana had a settled meaning and did not include hash-oil extraction. Individual could be charged with processing or manufacturing marijuana or marijuana concentrate in violation of this section for extracting hash oil using butane. People v. Lente, 2017 CO 74, 406 P.3d 829.

"Land" as used in subsection (3)(a)(I), in the context of a marijuana grow operation, excludes an enclosed, locked space on residential property. People v. Garcia-Gonzalez, 2020 COA 166, 478 P.3d 1288.

When the facts warrant, prosecution can proceed under both subsections (3)(a)(I) and (3)(a)(II); prosecution under subsection (3)(a)(II) does not preclude prosecution under other applicable statutes. People v. Garcia-Gonzalez, 2020 COA 166, 478 P.3d 1288.

Subsection (5) does not state an element of felony distribution and the language used demonstrates a deliberate choice by the general assembly to differentiate the crime of possession from the crime of dispensing or sale under subsection (8)(b)(I) and the circumstances giving rise to the crime of possession. People v. Torres, 812 P.2d 672 (Colo. App. 1990) (decided prior to 2010 amendment).

The absence of the phrase "[a]ny provision of this article to the contrary notwithstanding" in subsection (7)(b) does not indicate that any statutory provisions of article 18 of title 18 that are "to the contrary" of that subsection are not overridden by it, nor does the absence of this phrase require a court to instruct a jury in accordance with subsection (5). People v. Graybeal, 155 P.3d 614 (Colo. App. 2007).

The 1982 addition of subsection (8)(b)(I) makes clear that subsections (8)(b)(I) and (5) are independent of one another, define distinctly different crimes, and effectuate different legislative goals. People v. Torres, 812 P.2d 672 (Colo. App. 1990).

Multiple drug convictions sustainable if factually distinct. Both of the defendant's marihuana convictions are sustainable because the facts suggest one package of marihuana was intended for personal use and the other package was intended for distribution. People v. Valencia, 169 P.3d 212 (Colo. App. 2007).

There was no basis for a jury to have acquitted defendant on felony distribution charge under subsection (8)(b)(I) and at the same time find him guilty of possession under subsection (5) because the transactions involved consideration and the fact that defendant's motive was a desire to develop a friendship and sexual relationship with the detective rather than profit did not change the character of the transaction. People v. Torres, 812 P.2d 672 (Colo. App. 1990).

Possession of eight ounces of marijuana or more is a lesser included offense of possession with the intent to distribute marijuana. Each element of the possession offense is included in the offense of possession with intent to distribute except the quantity; however, the quantity is a sentence enhancer, not an essential element of the offense. People v. Garcia, 251 P.3d 1152 (Colo. App. 2010).

Possession of marijuana is not a lesser included offense of transferring marijuana under subsection (7)(b) or contributing to the delinquency of a minor under 18-6-701. People v. Graybeal, 155 P.3d 614 (Colo. App. 2007).

Possession not lesser included offense to crime of introducing contraband. Because proof of possession is not an essential element to the crime of introducing contraband ( 18-8-203), the crime of possession of cannabis cannot be a lesser included offense thereof. People v. Etchells, 646 P.2d 950 (Colo. App. 1982).

Probable cause to believe defendant committed the crime of possession of contraband under 18-8-204.1 where defendant tested positive for marijuana and was in the custody of the department of corrections on the date of the offense and evidence of use assumes possession. People v. Smith, 984 P.2d 50 (Colo. 1999).

A person may not be subject to a custodial arrest for violating this section. The plain meaning of this section is that a peace officer may issue a summons and complaint and may subject a person only to a non-custodial arrest, under which circumstances a peace officer may conduct only a pat-down search for weapons and search for instrumentalities or evidence of the specific crime for which the officer had probable cause to make an arrest. People v. Bland, 884 P.2d 312 (Colo. 1994).

Applying this statute, which criminalizes the possession and growing of marijuana, to a person who conducts such activities for religious reasons does not violate that person's rights under the free exercise clauses of the federal and state constitutions. People v. Torline, 2020 COA 160, 487 P.3d 1284.

"Arrest and detention", as used in subsection (2), are synonymous terms; both refer to "noncustodial" arrests. People v. Bland, 884 P.2d 312 (Colo. 1994).

Even though a person may not be subject to a custodial arrest for possessing one ounce or less of marihuana in violation of this section, the non-custodial arrest of such a person may permit not only a search for weapons, but also an extensive search for the instrumentalities of the crime. People v. Bland, 884 P.2d 312 (Colo. 1994).

Lawful possession of marihuana under subsection (10) is an affirmative defense to charges of unlawful possession with intent to distribute marihuana and unlawful possession of eight or more ounces of marihuana. The provision provides a legal justification to what would otherwise be criminally culpable behavior. People v. Reed, 932 P.2d 842 (Colo. App. 1996).

Question of the validity of 42-2-124 was ripe for determination where court stayed its surrender of defendant's license pending appeal after convicting defendant of drug use under this section. People v. Smith, 944 P.2d 639 (Colo. App. 1997).

Subsection (10) does not preclude a finding of probable cause to conduct a search based upon the smell of burning marihuana. People v. Mendez, 948 P.2d 105 (Colo. App. 1997), aff'd on other grounds, 986 P.2d 275 (Colo. 1999).

Prosecution's theory that defendants were fraudulently using their medical marijuana licenses to illegally distribute marijuana was supported by sufficient evidence. The prosecution presented evidence that the amount of marijuana was more consistent with distribution than with personal use; the defendant's marijuana grow demonstrated the plants were grown for distribution, not personal medical use; and the presence of guns and cash at the residence strongly suggested that the defendants were engaged in illegal distribution. People v. Douglas, 2015 COA 155, 412 P.3d 785.

Applied in People v. Root, 650 P.2d 562 (Colo. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983); People v. Hazelhurst, 662 P.2d 1081 (Colo. 1983).